Ministers to Decide Whether Coalition Will Back Expanding Use of Jewish Law in Israeli Courts

Legislation proposed by Habayit Hayehudi MK Nissan Slomiansky would require courts to rely on 'principles of Hebrew law' in cases with no clear legal provision, either in the form of Israeli statute or Israeli court precedent.

Jonathan Lis
Jonathan Lis
MK Nissan Slomiansky with an aide at a Knesset Finance Committee meeting, December 18, 2014
MK Nissan Slomiansky with an aide at a Knesset Finance Committee meeting, December 18, 2014Credit: Emil Salman
Jonathan Lis
Jonathan Lis

The Ministerial Committee for Legislation will consider whether to throw the coalition government support behind legislation that would require the country's courts to rely on "the principles of Hebrew law," meaning halakha, or traditional Jewish religious law, in instances in which there is no clear legal provision either in the form of Israeli statute or Israeli court precedent.

The legislation is being proposed by Habayit Hayehudi MK Nissan Slomiansky, who chairs the Knesset's Constitution, Law and Justice Committee. He pulled the bill several weeks ago, just before it was due to be considered, over criticism leveled against it, but is expected to resubmit it in precisely the same form. Knesset sources predicted that if the bill gets the support on Sunday of the Ministerial Committee for Legislation, the language of the legislation will later be modified to curb the criticism.

The Knesset previously passed legislation currently in effect that allows judges to look to court precedent outside of Israel if Israeli statute and court decisions don't address an issue before the court. Under current law, only if there is still no basis for a decision based on domestic law or foreign precedent, it is suggested that judges look in their decision to what is termed "the principles of liberty, justice, integrity and peace of Jewish tradition."

Slomiansky's original bill would require judges to look first to halakha and only then to the foreign sources. If modifications are made to the bill, they are expected to allow judges to prefer the foreign precedent, but only if it is clear.

Several weeks ago, Slomianksy told Haaretz that his Habayit Hayehudi colleague Justice Minister Ayelet Shaked is "very much in favor" of the bill. Sheked also chairs the Ministerial Committee for Legislation. Sources at her office have simply said she would decide her stance when the bill comes up for a vote.

The Knesset faction of Kulanu, which is a member of the governing coalition, has not decided on its stance on the proposed bill, but party sources recently said they thought their leader, Finance Minister Moshe Kahlon, who is on the ministerial committee, might scuttle the bill's progress.

During negotiations over the formation of the current government, Kahlon strongly opposed inclusion of any legislation that eroded the authority of the Supreme Court in coalition agreements and said his party would not lend a hand to such legislation. Associates of Kahlon said he still maintains the same stance. He has not yet studied Slomiansky's bill, they said, but if he believes it would do damage to the courts, we would oppose it.

Slomiansky's bill would modify a law on the foundations of the law that was passed in 1980. Explanatory notes to the original legislation said it would require judges to look to Jewish tradition on legal issues on which no statute or court precedent applies, but judges have made very little use of the law. That is because it is vague and only calls on judges to look to "principles of liberty, justice, integrity and peace of Jewish tradition" and they may also currently look first to foreign legal precedent before halakha. The current draft of Slomiansky's bill would enable judges to base their rulings, in the event that there is no Israeli statute or court precedent on the subject, on principles of Jewish law, including the Talmud and halakhic rulings, before looking to foreign sources. In addition, Slomiansky is suggesting revising the current vague law from 1980 with a clearer law about resort by judges to "principles of Hebrew law."

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